The Final Week of Judicial Activism

Last week, while upholding ObamaCare, the Supreme Court issued rulings in four other cases, overturning a total of 32 state and federal statutes. The significance of the other cases may have been lost in the glare of the ObamaCare decision. The other cases portray a Court quite ready to — in President Obama’s famous words — “somehow overturn a duly constituted and passed law.” Taken together, the four cases are a study in judicial activism.

1. In United States v. Alvarez, the Court overturned a federal statute making it a crime to lie about receiving a Congressional Medal of Honor or similar military medal. Congress sought to stem an epidemic of false claims about such medals, concluding it was undermining the nation’s system of military honors. The statute penalized a person’s intentionally false statement about the medal — a blatant lie, with no inherent value as speech, reflecting no political or other point of view, with the true facts within the person’s own direct knowledge.

The Court held 6-3 that the statute violated the First Amendment. The majority noted that content-based restrictions on speech had been permitted “only for a few historic categories” of speech, “including [1] incitement, [2] obscenity, [3] defamation, [4] speech integral to criminal conduct, [5] so-called ‘fighting words,’ [6] child pornography, [7] fraud, [8] true threats, and [9] speech presenting some grave and imminent threat.” The Court ruled against adding lies about military honors to the list, suggesting the government could protect the integrity of medals in less burdensome ways, possibly through “a more finely tailored statute.”

Justice Breyer’s concurring opinion gave an example of such a statute. He noted “not all military awards are alike,” that “Congress might determine that some warrant greater protection that others,” and that perhaps it could “focus its coverage on lies [about medals] most likely to be harmful.” In his dissent, Justice Alito (joined by Justices Scalia and Thomas) succinctly illustrated the nature of such a ruling:

Justice Breyer also proposes narrowing the statute so that it covers a shorter list of military awards, but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place.

2. In Miller v. Alabama, the Court by 5-4 overturned the statutes of 28 states and Congress providing mandatory life sentences for juvenile murderers. The record showed that 17 year olds commit a significant number of murders (averaging 424 per year in 2002-2010). The Court held a mandatory life sentence for someone under 18 was “cruel and unusual” punishment — although it was obviously substantially less cruel than the death penalty; could not reasonably be called “unusual” (since most states and the federal government imposed it); and hardly reflected an antiquated morality, since the statutes were recently enacted.

Chief Justice Roberts (joined by Justices Scalia, Thomas, and Alito) responded with a masterful dissent, noting that the majority did not rely on the Eighth Amendment’s text, but rather on the judicially created test of “evolving standards of decency that mark the progress of a maturing society.” Roberts asserted the majority did not point to any objective evidence of such evolving standards in the case before it, and had ruled instead based on their personal views about juvenile justice:

Mercy toward the guilty can be a form of decency, and a maturing society may abandon harsh punishments that it comes to view as unnecessary or unjust. But decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty.

The sentences of more than 2,000 people currently in prison must now be reviewed, and the Court made it clear how it expected that review to come out: Writing for the Court, Justice Kagan said “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” As Roberts noted, the Court had substituted its own judgment for that of most of the legislative bodies in the United States.

28 Comments, 17 Threads

1.
Adina Kutnicki, Israel

Oh boy…this a topic near and dear to my (Conservative) heart.

A major thorn in the side of Jewish nationalists (who are by definition Conservative in outlook) within Israel is our legal system, specifically the Supreme Court. To describe Israel’s Supreme Court (particularly since ex Chief Justice, Aaron Barak,eviscerated all meaning of impartial legal renderings)as activist, is akin to describing a bank robber as law abiding, except when he is not robbing banks!

Much has been written about this topic from a stellar group of Israeli commentators, chief among them Dr Martin Sherman, Professor Paul Eidelberg and the inestimable Caroline Glick.

I penned several op-eds (and commentaries too) on this very subject. Specifically, ‘Justice In The HolyLand:Is It Ideologically Driven’(featured at The Jewish Press), as well as ‘Administrative Detention Against Jewish Nationalists’ (also featured at The Jewish Press, as well as The Freeman Center For Strategic Studies-among other sites-and most significantly,it was DEEPLY sourced),addresses the societal havoc wrecked upon Israel’s majority citizens, by an out of control, social engineering judicial system,with its Supreme Court being the main arbiter of the law. Hmmm…..

Check out these two op-eds at my blog -http://www.adinakutnicki.com, you will be in for a great shock.

…noting that the majority did not rely on the Eighth Amendment’s text, but rather on the judicially created test of “evolving standards of decency that mark the progress of a maturing society.” Roberts asserted the majority did not point to any objective evidence of such evolving standards in the case before it, and had ruled instead based on their personal views about juvenile justice…As Roberts noted, the Court had substituted its own judgment for that of most of the legislative bodies in the United States.

The left wing of the court fancies itself far more in tune European standards than with those lousy American Constitutional standards.

Said wing, of course, views itself as wise and enlightened relative to its fellow conservative Neanderthals on the court.

The United States suggests that a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement policies. Those priorities, however, are not law.

Barack and Eric decide which laws, and which parts of which laws, they’re going to enforce and, apparently, “the court” should then consider their personal preferences and whims as duly constituted law.

“Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”

In a word, yes. As a result of this Supreme Court decision, the states have no say in their own security. What this ruling does NOT address is, if the Federal government has no desire to uphold the law, do states have to suffer the consequences of that decision, such as a much higher crime rate and a flood of illegal aliens overwhelming the public schools and hospitals in those states? Who pays for that if the Federal government refuses to do anything about illegal immigration? The Supreme Court never seems to care about the actual ramifications of their rulings. After all, they don’t have to. They are safely hidden in Washington, not having to be bothered by “pesky” little details like dead border patrol agents, massive crime along our national border, and a flood of illegal aliens which threatens the very economies of the states along Mexico’s borders. I guess to the Supreme Court, that’s somebody else’s problem.

Let’s suppose Arizona began forcibly rounding up illegals and pushed them south of the border all on their own. How would the Feds stop it? Send in the National Guard to arrest Arizona’s law enforcement officers? Arizona ought to just go for it. I’d love to see the Feds try.

The justices have in the past and still do move somewhat to one side or the other but the real problem is the 4 far left activists on the court, Sotomayor, Ginsberg, Kagan and Breyer. They will always vote to extinguish individual rights and enhance state power.

It is interesting that the Supreme Court ruled that “lying” is protected under free speech. How could a rational person believe that… unless those justices who ruled this perhaps lied their way through the nomination process? After all, lying is okay if in the end “good things” are done, right Adolf?

After all, lying is okay if in the end “good things” are done, right Adolf?

Adolf and Islamic taqiyya.

Entrenched and relentless lying is the supreme characteristic of the current Washington administration.

“If you tell a lie big enough and keep repeating it, people will
eventually come to believe it. The lie can be maintained only for such
time as the State can shield the people from the political, economic
and/or military consequences of the lie. It thus becomes vitally
important for the State to use all of its powers to repress dissent, for
the truth is the mortal enemy of the lie, and thus by extension, the
truth is the greatest enemy of the State.”
~Joseph Goebbels

I find it interesting lying is a punishable offense in a court of law.
Yet the highest court in the land upheld lying under the first ammendment

To that note we have a President who lied about his backround, his birthplace, who wrote his book, his beliefs, his religion, his friendships and his past associations.
Yet we can’t see his transcripts, classes or any documents with gunwalking
Our President is alot of things but honest is Not one of those traits yet he can do so under the guise of “free speech”

Robert’s tortured justification for upholding Obamacare gives congress the right to lie to the American people about the bills they pass and call it a labeling problem. Beware future Trojan bills that must be passed to find out what is in them. And now the court has ruled with Alvarez that lying is free speech. Our Government has rotted inside out, outside in, top to bottome and left to right. There is no longer any moral, ethical, legal or constitutional grounding to any aspect of our government(s).

Does it ever occur to any of you just how truly disgusting all these people are? Of the 535 plus 9 plus 2 clowns that duly misgovern us in DC, there probably aren’t 40 of them whose hand I would even be willing to shake. The vast majority I would like to give the rough edge of my tongue. Some of them I would truly love to tell, up close and personal, just how much I think they deserve to be tried for treason, convicted, and shot.

Glenn Reynolds is absolutely correct. We now have the worst political class in American history. It’s a damned severe indictment of our political system that we have such a crop of thieving, immoral scum running our country.If America can’t do better than this lot we deserve to fail as a nation.

These people got elected to high office because they are no different from the majority of the 311 million other Americans they represent. The problem is that most people in our country are corrupt and, in my opinion, contemptible. It isn’t just our political class. Just like in our society, a sieable minority of these poiticians are very good people, I says.

What I don’t understand is why those of us who advocate fighting for our country haven’t managed to find a leader. I was hoping the Tea Party Movement was going to coalesce into a solid unit from which a true leader would emerge.

This country needs a divorce. Seriously. Let all the small c’s get together & run their little show & allow the rest of us to forge a new nation of our own where we can live by the Constitution & be the law-abiding citizens we want to be…..in peace.

bobbcat: On the Chris Rock thread I gave my thoughts to lolly on this very question.

Basically, it boils down to building a Take America Back party joining with a 2nd Amendment and TEA party. Forget the GOP. We need to build a grassroots army in the fly-over and southern states and take each governorship, and state and local legislatures.

We need cyber warfare experts and a phalnyx of lawyers, accountants and smart PR flacks. We need to threaten seccession and work to disgourge DC from our states; we need to get millions of people to stop buying from companies who support the progs in the MSM until their money dries up; we need to investigate the Soros’s and other uber-wealthy who support progs and progs organizations and 527s.

We need millions to respond in kind to whatever the left does to us: if 100 SEIU members show up at an event we need to show up with 1000; if the ACLU sues we counter sue, etc… If the NBP threaten to beat up white Americans, we show up. We have to stop cowering to the left and blacks.

Soon, I fear. The government is now free to tax the air we breathe and the ideas we share on this blog site. They can even tax us for killing piss ants in our kitchens and the volume of our turds. And, according to five people in black robes, that is entirely a federal Constitutionally derived power. They can even select which small groups of people they will tax for everything and which small groups of people the will not even tax. I have read my Constitution several times and I don’t see what the five Supreme Court Justices can see. I am not surprised about the health care ruling though. SCOTUS hasn’t gotten much of anything right during my, now extensive, lifetime.

I think the court got it about right. If John Kerry got a grass cut, a scrape, and then a boo-boo, demanded three purple hearts and a ticket home, then ran for President, then why should any blow hard in a bar be treated differently? Some patriots lose body parts for those medals; some get long dirt naps, but no medal. But look at those Power Point heroes who could not pass a metal detector in an airport. Who is lying?

And my favorite thinking judge, Scalia, got his stark issue wrong, “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” Of course. If a duly elected President completely surrenders our nation to a foreign enemy, there is nothing constitutionally any Governor can do about it. This should be seared into each voter’s mind when they enter the ballot booth. Elections have consequences, we get what we deserve. The framers knew this. It is the reason why they incorporated the First and Second Amendments into our basic law. We have the God given right to cling to our bibles and our guns.

But if the current judicially created test is, “…evolving standards of decency that mark the progress of a maturing society.”, we are lost. After my 69 years, I judge that our society is becoming less mature, and more childish by the day. There is no one in Washington D. C. who has a scintilla of fiscal discipline. And if the laws against lying were enforced, the D.C. traffic problems would vanish in one week. By election day, some billion dollars will have been spent on electioneering, meaning spreading mostly lies.

The court got it about right. This is amazing as half of the judges do not believe in our Constitution; they believe they must herd us like cattle.

Concerning United States v. Alvarez, it’s difficult to imagine the Supreme Court majority being so casual about a law making it illegal to claim (say on a blog) to be a federal court judge or, for that matter, merely a lawyer.

Before the late 1960s, respect for courage, particularly in war, was a nearly universally held opinion in our society. Since then, not so much, although some would claim that they’re displaying ‘courage’ attacking groups, say religious conservatives, who’re unlikely to do them any harm.

We’re in sad shape as a nation and this decision, along with the shallow ‘short-list’ argument that accompanied it, is one illustration.

Past Supreme Court decisions have extended more rights to non-citizens. The resulting flood of illegals has resulted in crippling higher costs for local and state services that the states and local governments are not permitted to deny. Now the SC and the Obama administration are preventing the states from controlling these costs through enforcing immigration law.

The SC has also previously ruled that the feds cannot impose unfunded liabilities upon the states by statute and regulation. The argument has not been made that the feds enforcement policy has the same effect as the imposition of unfunded statutory liabilities for social services resulting from the illegal immigrant burden.This is the best argument the states have to force federal enforcement of existing immigration or convince the SC to allow the states to do so.

The first function to be served by the upper house, said the political theorist succinctly, was obviously “to protect the people against their rulers.” All the institutions of government must be so formed as to protect the people against their rulers: This understanding that the members of government were themselves the greatest threat to liberty and justice must never be forgotten, be defended against, because they had the power no other element in society had: the power to make the rules by which they and all others lived—to grant and withhold privileges, to create and destroy fortunes, to define the outlaw and the traitor No other person or faction or group had so much power. And even American politicians, as these patriots were among the first to know, had the capacity for great wrong, and even for tyranny.

I, for one, am quite glad for an appropriately activist Supreme Court.
I’ve lived a lot of my life in Australia. Oz is a wonderful place, but it has definite downsides – and the Australian High Court (the equivalent to our SCOTUS)is one of the worst. It is all but incapable of making a real decision – one with far reaching consequences, or giving large scale direction as regards what is or is not permissable. As a result, the Parliament does as it pleases – and since there is also no differentiation between the Legislative and Executive branches, no one can call them on it. (Well, technically the Governor-General can. But in over 100 years no GG has ever actually done his job.)
From this viewpoint, having a SCOTUS that actually does things is much better than a bunch of do-nothings, even if I don’t always agree with them.
As far as Alvarez goes, though, I’m serously surprised at the reaction. Do you people actually want the government to have a say in deciding what is or isn’t the truth? To be able to prosecute people for saying something they consider a lie? No freaking way!

So, it is considered judicial activism to decrease the power of the State to destroy lives? I thought Republicans were about decreasing the State aparatus. Here we have rulings decreasing the power of the State to destroy a person’s life because they told someone at a bar they won the medal of honor or sending a 15 year to jail for the rest of their life without the chance of parole, and people are unhappy that the State’s power has been decreased? Hopefully, we will see a rise in the libertarian party, and a decrease in the republican party, since the former actually believes in limited government.

1. Re: [4] speech integral to criminal conduct, and [7] fraud: All crimes are forms of theft: offensive attacks that deny the attacker’s victim something they, not the attacker, are entitled to; basic robbery is theft of one’s stuff (and so is arson); kidnapping, assault, and rape are all thefts of one’s bodily autonomy, murder is theft of one’s life, and lying (fraud) is only the most basic form of theft – it’s the theft of the Truth. (And lying includes presenting one’s merely subjective, unresearched, fact-free opinion as if it were objective fact)! Lying about medals is fraud.

2. Bingo; their opinions trump the obvious, that in order for us to have any sort of deterring punishment and justice at all, the worst crimes must be met with the harshest punishments (an eye for an eye) and as for the ‘juvenile’ designation, even little kids all instinctively know the Golden Rule of Law (which defines all situational morality as Do Not Attack First) as the “But Mom! THEY STARTED IT! Rule… and murder is where you steal an innocent life, ‘first!’

3. Exactly; since the Feds have no police force of their own (beyond the merely investigative FBI) exactly who do they think will have to enforce the Federal laws, if not the state police forces?!

4. The original (false and criminally negligent, irresponsible) rationale for the ‘legal fiction of the corporate person’ was that it would be too much trouble for those in charge to sign every document and waybill themselves, so they ‘had to’ declare themselves to be a single entity. In reality, it’s just a prime example of prima-facie intent to conspire to take risks which will only afffect others, for gains which will only accrue to themselves, while avoiding any culpability to the real human laws of partnership and agency. To now pretend to extend this so that each individual member, by mere dint of being a member of a group, can, in effect, vote and donate more than once, is beyond absurd.

As for the Obamacare ruling, Roberts is a delusive liar – it’s obviously a case of forced sales, (because the law reads that you have to buy private, for-profit health insurance, or else go to jail) and, since the money does NOT go to the government, NO, it’s NOT A TAX!

Besides which, even the wording of the legislation itself (and as all the arguments of the governments’ lawyers consistently insisted) said that it wasn’t a tax – yet Roberts (who isn’t empowered to write laws, in any way) simply did just that – he retroactively pretended he had the power to re-write, or “correct the wording” of this badly-written law, right then and there. Talk about delusions of omniscience and omnipotence – he clearly crossed the line and exceeded his own judicial mandate. He seems convinced that his imagined opinion is an actual fact.